73.
In all the circumstances outlined above the fair- minded and informed
observer would be hard- pressed to consider that such recommendations, in
respect of purported “needy and deserving persons”, would be a matter of such
significance as to require disclosure in a matter not involving the HDC. That is
because such observer would be unlikely to perceive why, in those
circumstances, any such recommendations would stand a greater chance of
success under a new government, as opposed to one under which
recommendations had been successful. On the evidence there would be no
reason for any communications with any party post August 2015 as according
to the August internal HDC email the recommendations were being processed.
There is also no evidence of any such communication with the executive, (apart
from the alleged WhatsApp message to the PM discussed previously). The fairminded and informed observer would not expect that at the date of the hearing
of the election petition appeals that there would be any communications to
disclose.
74.
Guidelines have been established for judicial conduct. It was alleged
that recommendations of persons for HDC housing transgressed those
guidelines. We are not required to make a determination on that allegation.
We are required to consider that issue only in the context of the test for
apparent bias.
75.
Even if the fair- minded and informed observer maintained any lingering
perception of the possibility of post-election follow up communications with
the HDC subsequent to the admitted recommendations, a logical connection
has not been convincingly articulated between any such communications and
a party before the court, or the outcome of litigation in favour of one or the
other.
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